Wednesday, August 20, 2014

With the passage of the 121st
Constitutional Amendment Bill and the attendant National
Judicial Appointments Commission Bill, the collegium system of
appointments, now 21 years in the making, is sought to be replaced by the newly
created National Judicial Appointments Commission (‘NJAC’). Unsurprisingly,
concerns over this new method of judicial appointments have been articulated
both in terms of a perceived incursion into judicial
independence as well as the logistical
uncertainties for the NJAC, which is tasked with appointments to all courts
of the higher judiciary. This stance is tempered with a candid
admission as to the limitations of the collegium system, which as is
argued, although imperfect, still remains a relatively
better mode of appointments in comparison to the proposed NJAC.All of these fears are valid, from a
stand point of preserving a constitutional balance intended to secure an
optimal degree of judicial independence as well as questions of efficacious constitutional
design. I wish to however move away from these macro level concerns, voiced in
terms of how the NJAC may eventually vote, the undefined criteria of
appointment of “eminent persons”, the dangers of a veto and possible executive
capture of the NJAC. In this post, I wish to discuss certain alarming
provisions within NJAC Act, that should alert us to the possible ways in which
pervasive legislative control may be exercised over the newly contemplated
appointment procedure. The NJAC Act, 2014 is passed in pursuance
of the newly inserted Article 124A and 124B which establishes and gives to the
National Judicial Appointments Commission constitutional status, while at the
same time describing its composition, functions and powers. Under the NJAC Act,
the procedure to be followed for appointments to the High Court as well as the
Supreme Court is clearly spelt out. Most importantly, in furtherance of the
newly inserted Article 124C, the NJAC Act, vests both the Central Government as
well as the Commission itself, with rule making power to further define the
manner in which appointments are to be made. The rule making power of the Central Government is rooted in Section 11, which provides for the power to fix the remuneration and other service conditions for the members of the NJAC. Section 11(2)(c), in the nature of a residuary clause, considerably expands this rule making power by stating “any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.” On the other hand, the rule making power of the NJAC itself is rooted in Section 12, and empowers the Commission to prescribe regulations for the criteria to be considered for judicial appointments, the criteria for consulting members of the bar for such appointments and other important substantive and procedural questions.

An immediate concern, given the wide and
overlapping rule making power of the Commission and the Central Government, is
a potential for conflicting rules, and an uncertainty as to which set of regulations
would prevail, if such a conflict were ever to arise. This fear is not entirely
unfounded, since the Law Ministry is actively involved in the functioning of
the Commission. The Law Minister himself is a member of the NJAC, and the Ministry
is tasked with promptly forwarding details as to prospective judicial
vacancies, to ensure timely appointments. Considering this intimate interface
between the Law Ministry and the NJAC, it would be natural to foresee a
situation in which the Law Ministry seeks to regulate the functioning of the
NJAC, which may potentially over lap, and worse still, conflict the rules of
the Commission.

More troubling however is Section 13 of the NJAC
Act, which subjects the rules, made in furtherance of this act (both by the Central
Government as well as the NJAC) to alteration by both houses of parliament. Sub-ordinate
legislation drafted by the executive is not subject to a uniform standard of
review by Parliament, and may vary depending on the terms of the statute
vesting such power. Generally however, statutes require that drafted rules be
laid before both houses, and changes may be made by the parliament within 30
days of such laying (resembling Section 13 of the NJAC Act). Rarely, is the
operationalization of such rules subject to prior parliamentary approval. Sub-ordinate
legislation drafted by judicial bodies under the Indian constitution are
qualitatively distinct, and are not subject to similar oversight. For instance,
under Articles 145 and 229, the Supreme Court and High
Court respectively, are granted rule-making powers for the discharge of their
constitutional duties as organs of the higher judiciary.

Although the scope
this rule making power varies, the purpose behind the vesting of such power in
constitutional courts, is to empower them to draft such regulations as may be
necessary for the proper discharge of their duties. Towards that end, as well
as to further secure judicial independence, the rules drafted by the Supreme
Court under Article 145 are not made subject to the Union Parliament, but
instead subject to the confirmation by the President. Similarly, rules made by
the respective High Courts are not subject to modification or approval by the
State Legislatures, but are subject to approval from the Governor of such a state.

Considering the proposed NJAC is a constitutional
body, and that it performs a vital judicial function, without however being a
judicial organ, the rules made by the Commission, should not be subject to
parliamentary modification. The ability of parliament to alter, in any manner,
howsoever insignificant, the regulations of the commission, seriously impedes
the ability of the NJAC to determine for itself, the relevant criteria to be
considered for the manner and method for judicial appointments. This is not to
suggest that the regulations of the NJAC would be subject to no safeguards
whatsoever. Under Article 145 and 229, rules drafted by judicial organs
continue to be subject to judicial review, and may be struck down if repugnant
to any constitutional provision. The rules of the NJAC, should therefore be
treated of such a like nature, and should be made subject only to judicial
review.

Section 13 of the NJAC Act, should then alert us to
the indirect, yet significant manner in which the government may continue to
retain unjustified supervisory powers over the Commission. If the rationale for
the creation of the NJAC is that judicial appointments must be reclaimed from
the exclusive domain the judiciary, then surely, it must also be insulated from
governmental interference in the finer points of its functioning and parameters
of deliberation. Importantly then, is the need to debate the constitutionality
of the NJAC, not merely in broad claims of judicial independence, but in the
more minute details of how such functionaries are to operate and whether the intended
constitutional space for such a Commission to operate in, is encumbered by unwarranted
government presence.

Interestingly, Arun Jaitley (the then leader of
opposition) delivered a strident
and informed speech in support of the new appointment procedure. Among the
many valid points he made, he called for a shift away from “impressionistic”
judicial appointments towards a more objective criteria for assessing
prospective judges. He illustratively stated that the proposed commission while
deciding the merits of a candidate should look into his/her performance at the
bar, academic and scholarly work, record of reported judgments (if any) and
probity as a judicial officer. These are no doubt valid points of
consideration, and will surely form the basis of further regulation of the
NJAC. If these criteria are meant to substitute judicial opaqueness in
appointments, which they undoubtedly should, then these criteria must equally
not be subject to suspect alteration by the Union Parliament.

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